Opinion
7381N Index 27149/15E
10-18-2018
In re STATE FARM FIRE AND CASUALTY COMPANY, Petitioner–Respondent, v. Ambers JACKSON, et al., Respondents, G. Martinez, Proposed Additional Respondent, American Transit Insurance Company, Proposed Additional Respondent–Appellant.
Law Offices of Richard A. Reinstein, P.C., Kew Gardens, (Michael I. Josephs of counsel), for appellant. Kelly Rode & Kelly, LLP, Mineola (Mary J. Joseph of counsel), for respondent.
Law Offices of Richard A. Reinstein, P.C., Kew Gardens, (Michael I. Josephs of counsel), for appellant.
Kelly Rode & Kelly, LLP, Mineola (Mary J. Joseph of counsel), for respondent.
Sweeny, J.P., Gische, Mazzarelli, Webber, Kahn, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered February 17, 2017, which granted petitioner State Farm Fire and Casualty Company's order to show cause to permanently stay the uninsured motorist arbitration, unanimously affirmed, without costs.
The deposition testimony of respondent driver and his passenger, who were hit by another vehicle that fled the scene, was admissible under both the present sense impression exception to the hearsay rule ( People v. Brown, 80 N.Y.2d 729, 734–735, 594 N.Y.S.2d 696, 610 N.E.2d 369 [1993] ) and the past recollection recorded exception (see People v. Somarriba, 192 A.D.2d 484, 485, 597 N.Y.S.2d 32 [1st Dept. 1993] ). The testimony included photographs of the license plate of the offending vehicle, shown to the police officers who arrived pursuant to their call, and corroborated by respondents' description of the vehicle.
Moreover, the court did not improvidently exercise its discretion is denying a continuance to allow a nonparty witness, the owner of the vehicle that left the accident, to testify, given that he failed to appear despite prior knowledge of the date of the hearing on coverage, which had previously been adjourned ( Halloran v. Spina Floor Covering, 185 A.D.2d 149, 149, 586 N.Y.S.2d 786 [1st Dept. 1992] ).